While going topless isn't against the law, the aggressive baring of breasts in city
streets could see topless women slapped with indecency charges.
December's Ontario Court of Appeal ruling - which overturned a 1991 conviction which
supported the premise that going topless was an indecent act - may have solved the
debate in Ontario, but in BC the debate rages on.
On Sunday, women taking part in a Gay Pride Parade bared their breasts and no arrests
were made.
But that doesn't mean Victoria cops are OK with the idea of topless women in downtown
streets.
"If a person is completely naked, a conviction is almost a certainty,"
says Victoria police Chief Doug Richardson. "But when a person is topless,
that's when it becomes debatable."
Notwithstanding the court decision in Ontario, Richardson says it's still an offence
under the criminal code for a woman to go topless in this province.
If police see a topless woman in a public place, he says it's likely an arrest will
be made. Crown counsel will then decide whether or not to approve the police charges.
The Crown Counsel Policy Manual recommends leniency - unless the woman "demonstrates
an aggressive approach to nude exhibitionism." According to the manual, this
could include blatant, repeated of willful non-compliance with the law. If a woman
defies a police officer's request to put on a shirt, for example, a charge would
be likely.
The manual urges Crown counsel to consider location, reaction of nearby residents
and the attitude of the offender in deciding whether or not to prosecute.
Richardson says the police consider similar issues when deciding whether to recommend
charges. If a woman goes topless in a secluded area, for example, an arrest would
be doubtful even though the criminal code states exposing breasts is an offence
even on private property.
Victoria resident Karen Sklapsky doesn't think going topless should be illegal,
but says woman should use common sense in deciding when and where to do so.
"If you go to Europe they go topless, but only on the beach," she says.
"On a beach, no problem, but not in public. The tradition in Canada has been
too conservative."
"I'm not shy about my own body," Sklapsky says, adding she has here nipple
pierced. "But if I bring up kids, it's not something kids should be brought
up with - there's too many perverts out there."
A University of Victoria criminal law professor says BC women won't know their rights
unless the Ontario case is appealed to the Supreme Court of Canada or a similar
case is tried in this province.
"The criminal code is a federal piece of legislation that affects all of Canada,
yet decisions work their way up to the courts of appeal within each province,"
says Gerry Ferguson. "This decision will only be binding in Ontario unless
it goes to the Supreme Court of Canada."
If the Crown does decide to charge a woman in BC, the court could look at the Ontario
decision, or follow BC court history which has ruled going topless an indecent act
in the past, and therefore dictates the woman must be convicted. Because it's a
summary offence, the woman would appear before a judge rather than a jury, and,
if convicted, face a fine rather than a jail sentence.
If a BC case is appealed, the appeal court would weigh the Ontario judgement, but
again the outcome can't be predicted.
"Often appeal courts agree," Ferguson says, "but they often disagree."
Because indecency falls under the criminal code, the City of Victoria has no say
in the matter either.
Rob Woodland, the City's manager of legislative services, says the municipality
has no bylaws at all concerning what people can or can not wear.
"We're not permitted in BC to regulate with regards to morality - and that
classifies as morality," he says.
There is currently only one area within the capital region that has been sanctioned
as a nude beach, according to CRD Parks administrator Lloyd Rushton. It's a very
small area with a floating wharf at Prior Lake in the Thetis Lake regional park.
Indecent exposure, says Richardson, is "so infrequent in Victoria, it's not
a big concern."
Regardless, he hopes the Ontario case is appealed to the Supreme Court of Canada,
so the decision will be binding across the country.